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McDonald v The Queen

McDonald v The Queen

Case [2015] NSWCCA 80 1 May 2015

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Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	McDonald v R
Medium Neutral Citation:	[2015] NSWCCA 80
Hearing Date(s):	16 April 2015
Decision Date:	1 May 2015
Before:	Basten JA at [1]; R A Hulme J and Adamson J at [39]
Decision:	Refuse application for an extension of time in which to give notice of application for leave to appeal against sentence.
Catchwords:	APPEAL – sentencing – appeal against sentence – murder conviction and sentence following guilty plea –notice seeking application for extension of time in which to seek leave to appeal filed six years after sentencing – Muldrock error alleged – the judgment on sentence did not expressly refer to R v Way [2004] NSWCCA 131; 60 NSWLR 168, but referred to R v AJP [2004] NSWCCA 434 and R v Simon [2005] NSWCCA 123 – whether sentencing judge applied Way principles and fell into error – whether extension of time should be granted
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 54B, 61; Pt 4, Div 1A
Cases Cited:	Kentwell v The Queen [2014] HCA 37; 88 ALJR 947 Lacey v Attorney-General (Qld) [2011] HCA 10; 242 CLR 573 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v AJP [2004] NSWCCA 434; 150 A Crim R 575 R v Borkowski [2009] NSWCCA 102; 195 A Crim R 152 R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 R v Simon [2005] NSWCCA 123 R v Way [2004] NSWCCA 131; 60 NSWLR 168 Williams v R [2012] NSWCCA 172
Category:	Principal judgment
Parties:	William Andrew McDonald (Applicant) Regina (Respondent)
Representation:	Counsel: Mr C Bruce SC (Applicant) Mr P Ingram SC (Respondent) Solicitors: S E O’Connor, Legal Aid of NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	CCA 2006/4418
Decision under appeal:
Court or Tribunal:	Supreme Court
Citation:	Regina v McDonald [2007] NSWSC 813
Date of Decision:	27 July 2007
Before:	Price J
File Number(s):	2006/4418

JUDGMENT

BASTEN JA: On 27 July 2007 the applicant, William Andrew McDonald, was sentenced by Price J in the Supreme Court for the murder of Barry Shaw on 27 August 2005. Following a plea of guilty, the applicant was convicted and sentenced to a term of imprisonment with a non-parole period of 18 years and a balance of term of six years, giving an overall sentence of 24 years imprisonment.[1]
[1] Regina v McDonald [2007] NSWSC 813.
Almost six years after the sentencing, the applicant filed a notice seeking an extension of time within which to seek leave to appeal. He is one of numerous offenders who have sought to appeal out of time as a result of the judgment of the High Court delivered on 5 October 2011, Muldrock v The Queen,[2] which identified error on the part of this Court in R v Way.[3] The error concerned the approach taken by this Court with respect…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McDonald v The Queen

Details

AGLC: McDonald v The Queen [2015] NSWCCA 80
Case: [2015] NSWCCA 80
Decision Date: 1 May 2015

CaseChat Overview and Summary

In this case, the appellant, McDonald, appealed against his sentence following a guilty plea to the crime of murder. The appeal was heard in the High Court of Australia. The appellant argued that the trial judge erred in sentencing him by failing to expressly consider the principles set out in R v Way [2004] NSWCCA 131; 60 NSWLR 168, despite referring to other relevant cases. The appellant sought an extension of time to file his application for special leave to appeal, which was filed six years after the original sentencing.

The primary legal issue before the Court was whether the trial judge had applied the principles from R v Way in sentencing the appellant. This required the Court to examine the sentencing judgment and determine if the principles from R v Way were sufficiently considered, despite not being expressly referenced. The Court had to decide if this constituted a Muldrock error, warranting the grant of an extension of time to appeal the sentence.

The Court found that while the trial judge did not expressly refer to R v Way, the judgment did consider its principles implicitly through references to other cases. The Court concluded that there was no Muldrock error as the sentencing judge had effectively applied the relevant principles. Therefore, the Court determined that an extension of time to appeal the sentence should not be granted.

As a result, the appeal against sentence was dismissed, and no extension of time was granted to the appellant.

Orders